FAQs

Estate Planning

Having a properly prepared estate plan is an important step in protecting your interests, your assets and the people who matter to you.

Estate planning is about more than simply preparing a Will. A comprehensive estate plan considers what should happen to your assets after your death, as well as who should be able to make important decisions on your behalf if illness, injury or loss of capacity means that you are unable to make those decisions yourself.

Without a valid Will, your estate will generally be distributed according to the intestacy provisions that apply in New South Wales. This may result in your estate being distributed differently from the way you would have intended.

What is an Estate Plan?

Depending upon your individual circumstances, an estate plan may include a number of important documents and strategies.

Will

A Will sets out how you would like your estate to be distributed after your death. It also allows you to appoint an executor to administer your estate and carry out your wishes.

A Will may be relatively straightforward or considerably more detailed, depending upon your family circumstances, the nature and value of your assets, your intended beneficiaries and whether additional structures, such as testamentary trusts, are appropriate.

Enduring Power of Attorney

An Enduring Power of Attorney allows you to appoint one or more trusted people to manage your financial and legal affairs on your behalf.

Importantly, an Enduring Power of Attorney can continue to operate if you subsequently lose the capacity to make financial decisions for yourself.

Depending upon how the document is prepared, your attorney may be able to deal with matters such as banking, paying expenses, managing investments, dealing with government agencies and buying, selling or managing property.

An Enduring Power of Attorney does not authorise your attorney to make medical or lifestyle decisions on your behalf.

Appointment of Enduring Guardian

An Appointment of Enduring Guardian allows you to nominate one or more people to make certain personal, health and lifestyle decisions for you if you lose the capacity to make those decisions yourself.

Depending upon the functions you give your Enduring Guardian, these decisions may include where you live, what health care you receive and what personal services are provided to you.

Your Enduring Guardian therefore performs a different role from your attorney. Your attorney generally looks after your financial and legal affairs, while your Enduring Guardian looks after specified personal, health and lifestyle decisions.

Having both documents in place can provide important protection if an accident, illness or other circumstance leaves you temporarily or permanently unable to make decisions for yourself.

Testamentary Trusts

A testamentary trust is a trust established under your Will that comes into operation after your death.

Rather than leaving an inheritance directly to a beneficiary, your Will can provide for some or all of that inheritance to be held and managed through a testamentary trust.

Testamentary trusts can be useful in a range of circumstances, including providing for children or vulnerable beneficiaries, protecting and managing an inheritance over time, and providing greater flexibility in the way assets and income are distributed.

Whether a testamentary trust is appropriate will depend upon your assets, family circumstances and estate-planning objectives.

Your Estate Plan Should Reflect Your Circumstances

There is no single estate plan that is suitable for everyone. Your estate plan should take into account your family circumstances, assets, liabilities, superannuation, property ownership, business interests and the people you wish to appoint to act on your behalf.

A carefully prepared estate plan can help ensure that your wishes are clearly documented, the right people have authority to assist you if you lose capacity, and your estate can ultimately be administered and distributed in accordance with your intentions.

In New South Wales, a Power of Attorney (POA) is a legal document in which one person (the principal) authorises another person or persons (the attorney) to make legal and financial decisions on their behalf.

The attorney may, depending on the document, be authorised to manage bank accounts, pay bills, deal with investments, sign documents, buy or sell property, and generally manage the principal's financial and legal affairs.

There are two different documents which you should be aware of: 

• General Power of Attorney – usually operates while the principal has decision-making capacity. It can be useful where someone is temporarily unavailable—for example, travelling overseas—but generally ceases to operate if the principal loses capacity.
• Enduring Power of Attorney – can continue to operate even if the principal later loses the capacity to manage their own financial and legal affairs. This makes it an important part of estate and later-life planning.

In summary:

A Power of Attorney allows you to appoint someone you trust to manage your legal and financial affairs on your behalf. An Enduring Power of Attorney can continue to operate if you later lose the capacity to make those decisions yourself, making it an important part of a comprehensive estate plan.

In New South Wales, an Enduring Guardian is a person you legally appoint to make certain personal, health and lifestyle decisions for you if, at some point in the future, you lose the capacity to make those decisions yourself.

An Enduring Guardian can be given functions relating to matters such as:

• Accommodation – deciding where you should live, including appropriate residential or aged-care arrangements.
• Health care – making decisions about the health care you receive.
• Medical and dental treatment – consenting to treatment within the authority granted by the appointment.
• Services – deciding what personal, community or support services you should receive